In their focus on self-preservation and profit, it’s crucial for businesses to recognise the human cost of putting reputation management before humanity. Understanding this could lead to a reset for some, paving the way for reaping the rewards of ethical conduct.
Of course, businesses have a right to protect their intellectual property and keep private the commercially sensitive areas on which their competitive success depends. To this end, non-disclosure agreements (NDAs) play a legitimate and vital role.
But increasingly, the misuse of NDAs by organisations and powerful individuals to conceal wrongdoing and silence the victims of workplace misconduct is coming to light. This is a dark area that CEOs, HR leaders, and legal teams across businesses need to address. It requires a complete mindset change.
Weaponised and harrowing
Listen to the harrowing accounts of victims in high-profile cases like those involving Harvey Weinstein or Harrods, and that human cost quickly gets exposed. NDAs, initially designed to protect commercially sensitive information, have been weaponised to cover up acts of sexual harassment, racial discrimination and other criminal behaviours by those with power.
Victims – the individuals gagged by NDAs from speaking their truths about sexual misconduct – will tell you that it was not one man’s perversion that destroyed them; it was the system which is complicit in enabling rich and powerful men to buy both the law and ‘justice’.
Shedding the NDA comfort blanket
When faced with accusations of inappropriate or illegal conduct, businesses need not immediately reach for the comfort blanket of the NDA shield. First, they must ensure that their mission includes a commitment to real justice, fairness, and the highest ethical standards. That needs to come from the very top of an organisation and filter through to every level.
Those robust internal policies will foster the ethical work environment within which healthy organisations thrive, where employees feel safe to speak up, where transparency is valued, and where the likelihood of harmful misconduct ever arising recedes.
Their legal teams need to keep abreast of the legislation which renders NDAs unenforceable when concealing illegal activities. For instance, in many jurisdictions, NDAs cannot be used to cover up criminal acts such as rape and sexual harassment.
HR departments need to ensure that mediation and arbitration work genuinely to address grievances and don’t serve merely to protect the wrongdoer and silence the victim in the misguidedly perceived interests of the organisation.
The focus needs to be on the care and well-being of the wronged, not on protecting the reputation of the wrongdoer, however powerful and influential they may be.
For some organisations, it may require a sea-change in thinking, a shift from protecting the powerful to prioritizing justice and fairness. However, the brave step of putting ethical conduct ahead of immediate reputation protection in the face of reported wrongdoing will always ultimately pay dividends. And paying dividends is, let’s face it, what business is all about.
